NO. 4-08-0120 Filed 11/10/09

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,

 Plaintiff-Appellee,

 v.

CRAIG J. BLANTON,

 Defendant-Appellant.

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 Appeal from

 Circuit Court of 

 Champaign County

 No. 07CF488

 Honorable

 Harry E. Clem,

 Judge Presiding.

_________________________________________________________________

JUSTICE MYERSCOUGH delivered the opinion of the court:

In December 2007, a jury found defendant, Craig J.

Blanton, guilty of armed robbery (720 ILCS 5/18-2(a)(2) (West

2006)) and aggravated robbery (720 ILCS 5/18-5(a) (West 2006)). 

In January 2008, the trial court vacated the aggravated-robbery

conviction under the one-act, one-crime rule and sentenced

defendant to 25 years' imprisonment for armed robbery. Defendant

appealed, arguing (1) the sentence for armed robbery violated the

proportionate-penalties clause of the Illinois Constitution (Ill.

Const. 1970, art. I, §11), (2) the trial court failed to comply

with Supreme Court Rule 431(b) (Official Reports Advance Sheet

No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007), and (3) the

court improperly considered the class of victim as an aggravating

sentencing factor. 

On June 17, 2009, this court issued an opinion finding

the trial court erred by failing to question each venireperson as
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to whether he or she understood and accepted the principle that

defendant's failure to testify could not be held against defendant. People v. Blanton, No. 4-08-0120, slip op. at 10 (June 17,

2009). This court found such error constituted plain error

because the failure to advise the jurors that defendant's failure

to testify could not be held against him was "'so substantial

that it affected the fundamental fairness of the proceeding.'" 

Blanton, slip op. at 9, quoting People v. Hall, 194 Ill. 2d 305,

335, 743 N.E.2d 521, 539 (2000).

One day later, on June 18, 2009, the supreme court

issued its decision in People v. Glasper, No. 103937 (June 18,

2009), Ill. 2d , , N.E.2d , . The Glasper

case involved the former version of Rule 431(b), which required

inquiry into the principles articulated by People v. Zehr, 103

Ill. 2d 472, 477, 469 N.E.2d 1062, 1064 (1984), only upon the

defendant's request. Glasper, slip op. at 7-8, Ill. 2d at 

 , N.E.2d at . In Glasper, the supreme court held that

a harmless-error analysis applied to the trial court's error in

refusing, upon defense counsel's request, to ask the potential

jurors whether they understood and accepted the principle that

the defendant's exercise of his right not to testify could not be

held against him. Glasper, slip op. at 13, Ill. 2d at , 

 N.E.2d at . Applying that analysis, the supreme court

found that the evidence of the defendant's guilt was overwhelming
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and that the error was harmless. Glasper, slip op. at 20, 

Ill. 2d at , N.E.2d at .

On July 8, 2009, the State filed a petition for rehearing asking this court to reconsider its holding in light of

Glasper. This court granted the petition for rehearing.

Because Glasper does not change the result in this

case, we reverse and remand for a new trial.

I. BACKGROUND

In March 2007, the State charged defendant by information with armed robbery (720 ILCS 5/18-2(a)(2) (West 2006)) and

aggravated robbery (720 ILCS 5/18-5(a) (West 2006)). In April

2007, the grand jury returned a true bill on both counts.

On December 13, 2007, the trial court conducted voir

dire examination of the venire. The court advised the venire as

a whole that (1) the State has the burden of proof and must prove

defendant guilty beyond a reasonable doubt, (2) defendant was

presumed innocent of the charges brought against him, and (3)

defendant did not have to present evidence unless he chose to do

so. With each panel of venirepersons seated in the jury box, the

court either (1)(a) again explained the principles that the State

bore the burden of proof beyond a reasonable doubt, defendant was

presumed innocent, and defendant did not have to present any

evidence unless he chose to do so or (b) stated that the venire

had previously heard several legal propositions explained during
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the voir dire, and (2) asked each panel of venirepersons whether

he or she understood and supported those principles. Each

venireperson ultimately selected as a juror answered "yes."

Defense counsel also questioned several of the members

of the venire about the same principles addressed by the trial

court: that defendant was presumed innocent, the State must prove

defendant guilty beyond a reasonable doubt, and defendant was not

required to offer evidence on his behalf. Defense counsel asked

one venireperson, ultimately selected for the jury, whether he

understood that if defendant chose not to present any evidence,

the venireperson could not hold that against defendant. The

venireperson answered "Right." Defense counsel asked another

venireperson, also ultimately selected for the jury, whether he

understood that defendant did not have to "say anything or prove

that he did not commit" the crime but that the State must prove

that defendant committed the crime. The venireperson answered

"Yes."

The case proceeded to trial. Defendant presented no

evidence and did not testify. At the jury-instruction conference, the State tendered a set of jury instructions but withdrew

the instruction that charged the jury to judge defendant's

testimony in the same manner as the testimony of any other

witness. See Illinois Pattern Jury Instructions, Criminal, No.

1.02 (4th ed. 2000) (hereinafter IPI Criminal 4th). Defense
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counsel did not object to withdrawing that instruction or tender

the instruction that the jury should not consider the fact that

defendant did not testify. See IPI Criminal 4th No. 2.04 ("[t]he

fact that [the] defendant did not testify must not be considered

by you in any way in arriving at your verdict"). The trial court

did not instruct the jury that defendant's failure to testify

could not be considered. 

The jury found defendant guilty of aggravated robbery

and armed robbery. In January 2008, the trial court vacated the

aggravated-robbery conviction under the one-act, one-crime rule

and sentenced defendant to 25 years' imprisonment for armed

robbery.

This appeal followed.

II. ANALYSIS

On appeal, defendant argues the trial court's failure

to fully comply with Supreme Court Rule 431(b) requires reversal

of his conviction and remand for a new trial. The State argues

(1) defendant forfeited the argument by not objecting in the

trial court or in a posttrial motion; (2) defendant acquiesced in

the procedure used by the court, a procedure that did not include

a specific, direct reference to testimony of the defendant; (3)

no error occurred in the voir dire as a whole because references

to the fact that defendant did not have to present evidence were

sufficient to disclose any potential bias from the potential
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jurors even though no specific questions were asked regarding the

jurors' views about defendant's right not to testify; and (4) any

shortcomings in the conduct of voir dire should be deemed harmless.

A. Standard of Review Is De Novo

This court reviews the issue of compliance with a

supreme court rule de novo. People v. Garner, 347 Ill. App. 3d

578, 583, 808 N.E.2d 10, 14 (2004) (involving compliance with

Rule 605(a) (210 Ill. 2d R. 605(a)).

B. Supreme Court Rule 431(b)

Supreme Court Rule 431(b) was adopted in 1997 to ensure

compliance with Zehr, 103 Ill. 2d at 477, 469 N.E.2d at 1064. 

See Glasper, slip op. at 7-8, Ill. 2d at , N.E.2d at

 . The Zehr court held that "essential to the qualification

of jurors in a criminal case is that they know that a defendant

is presumed innocent, that he is not required to offer any

evidence in his own behalf, that he must be proved guilty beyond

a reasonable doubt, and that his failure to testify in his own

behalf cannot be held against him." Zehr, 103 Ill. 2d at 477,

469 N.E.2d at 1064. As originally enacted, Rule 431(b) provided

that the trial court was not obligated to ask potential jurors

whether they understood and accepted the Zehr principles absent a

request from defense counsel. See People v. Jocko, 389 Ill. App.
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3d 247, 259, 906 N.E.2d 38, 48 (2009), appeal allowed, 233 Ill.

2d 580, N.E.2d (2009).

Effective May 1, 2007, Rule 431(b) was amended to

impose "a sua sponte duty on the trial court to question each

potential juror as to whether he understands and accepts the Zehr

principles." People v. Gilbert, 379 Ill. App. 3d 106, 110, 882

N.E.2d 1140, 1145 (2008). That is, such questioning was no

longer dependent upon a request by defense counsel. Gilbert, 379

Ill. App. 3d at 110, 882 N.E.2d at 1145. Rule 431(b) currently

provides as follows:

"The court shall ask each potential

juror, individually or in a group, whether

that juror understands and accepts the following principles: (1) that the defendant is

presumed innocent of the charge(s) against

him or her; (2) that before a defendant can

be convicted the State must prove the defendant guilty beyond a reasonable doubt; (3)

that the defendant is not required to offer

any evidence on his or her own behalf; and

(4) that the defendant's failure to testify

cannot be held against him or her; however,

no inquiry of a prospective juror shall be

made into the defendant's failure to testify
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when the defendant objects.

The court's method of inquiry shall

provide each juror an opportunity to respond

to specific questions concerning the principles set out in this section." Official

Reports Advance Sheet No. 8 (April 11, 2007),

R. 431(b), eff. May 1, 2007.

The committee comments provide as follows:

"The new language is intended to ensure

compliance with the requirements of People v.

Zehr, 103 Ill. 2d 472 (1984). It seeks to

end the practice where the judge makes a

broad statement of the applicable law followed by a general question concerning the

juror's willingness to follow the law." 177

Ill. 2d R. 431(b), Committee Comments, at

lxxix.

C. Trial Court's Failure To Comply With 

Rule 431(b) Constituted Plain Error

 In this case, the trial court advised each venireperson

of the first three Zehr principles and questioned each

venireperson whether he or she understood and accepted the first

three Zehr principles in a manner that allowed each venireperson

an opportunity to respond. However, the court neither advised

the venirepersons of the fourth Zehr principle--that defendant's
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failure to testify could not be held against him--nor questioned

each venireperson whether he or she understood and accepted the

fourth Zehr principle. Neither defense counsel nor the State

addressed the fourth Zehr principle either, perhaps because

defendant was going to testify.

Given the absence of any inquiry of the venirepersons

regarding the fourth Zehr principle by the trial court, defense

counsel, or the State, defense counsel may have actually objected

off the record to any such inquiry. See Official Reports Advance

Sheet No. 8 (April 11, 2007), R. 431(b)(4), eff. May 1, 2007 ("no

inquiry of a prospective juror shall be made into the defendant's

failure to testify when the defendant objects"). However, the

record does not so reflect, and defendant did not testify. 

Therefore, error clearly occurred here because the trial court

did not question each venireperson as to whether he or she

understood and accepted the fourth Zehr principle. 

In response to the State's argument that defendant

forfeited the issue by failing to raise it in the trial court,

defendant asks this court to review the error under the plainerror doctrine. The State asserts that a harmless-error analysis

applies. We agree with defendant.

Defendant did not object to the error in the trial

court. A plain-error analysis applies when the defendant failed

to make a timely objection in the trial court while a harmless-
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error analysis applies when the defendant timely objected to the

error. People v. Johnson, 388 Ill. App. 3d 199, 203, 902 N.E.2d

1265, 1268 (2009), appeal allowed, 232 Ill. 2d 588, 910 N.E.2d

1130 (2009) (No. 108253).

In this case, because defendant did not object in the

trial court, this court must examine the error for plain error. 

See People v. Owens, 4-08-0161, slip op. at 9-11 (September 16,

2009), Ill. App. 3d , , N.E.2d , (applying a

plain-error analysis where the defendant failed to object to the

trial court's failure to determine through questioning whether

each juror understood and accepted the Zehr principles). This

court may review an error under the plain-error doctrine if (1)

the evidence is closely balanced or (2) the error is "so substantial that it affected the fundamental fairness of the proceeding,

and remedying the error is necessary to preserve the integrity of

the judicial process." People v. Hall, 194 Ill. 2d 305, 335, 743

N.E.2d 521, 539 (2000). Under the second prong, "[p]rejudice to

the defendant is presumed because of the importance of the right

involved." People v. Herron, 215 Ill. 2d 167, 187, 830 N.E.2d

467, 480 (2005). 

The principle involved here--that a defendant's failure

to testify in his own behalf cannot be held against him--"'is

perhaps the most critical guarantee under our criminal process

and is vital to the selection of a fair and impartial jury that a
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juror understand this concept.' [Citation.]" People v. Brooks,

173 Ill. App. 3d 153, 158, 527 N.E.2d 436, 439 (1988). In this

case, the jurors were never even advised that defendant's failure

to testify could not be held against him. See, e.g., People v.

Wilmington, No. 1-07-2518, slip op. at 11-12 (September 24,

2009), Ill. App. 3d , , N.E.2d , (finding

plain error where, although the trial court informed the venire

members of all four Zehr principles, the court failed to question

the potential jurors about their acceptance and understanding of

one of the principles--the defendant's right not to testify; the

failure "denied the defendant the right to a fair and impartial

jury"). The error here was so substantial that it affected the

fundamental fairness of the proceeding. See, e.g., People v.

Blair, No. 2-07-0862, slip op. at 18 (September 29, 2009), 

Ill. App. 3d , , N.E.2d , (finding that the

trial court's failure "to ask a majority of the jurors whether

they understood and accepted three of the four Zehr principles"

denied the "defendant a substantial right, undermined the fairness of his trial, and impacted the integrity of the judicial

process").

As stated in Zehr:

"We are of the opinion that essential to

the qualification of jurors in a criminal

case is that they know that a defendant is
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presumed innocent, that he is not required to

offer any evidence in his own behalf, that he

must be proved guilty beyond a reasonable

doubt, and that his failure to testify in his

own behalf cannot be held against him." 

Zehr, 103 Ill. 2d at 477, 469 N.E.2d at 1064.

This court must therefore reverse and remand for a new trial.

1. Result Not Affected by Glasper

This result is not affected by the recent decision by

the supreme court in Glasper. In Glasper, the version of Rule

431(b) in effect required that the trial court ask the potential

jurors whether they understood and accepted the Zehr principles

only if requested by the defendant. Glasper, slip op. at 8, 

Ill. 2d at , N.E.2d at . The defendant asked the trial

court to inquire of the potential jurors about the defendant's

right not to testify, but the court refused. Glasper, slip op.

at 8-9, Ill. 2d at , N.E.2d at . Instead, the

court told the venire, as a group, about each of the Zehr principles, including that the defendant did not have to testify on his

own behalf and that his failure to testify could not be considered in arriving at a verdict. Glasper, slip op. at 9, Ill.

2d at , N.E.2d at . The court did not, however, ask

each venire member if the defendant's decision not to testify

would influence his or her verdict. Glasper, slip op. at 9, 
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Ill. 2d at , N.E.2d at .

The supreme court found that the trial court's refusal

to ask the venire, upon the defendant's request, whether it

understood and accepted the principle that the defendant's

failure to testify cannot be held against him constituted error. 

Glasper, slip op. at 9, Ill. 2d at , N.E.2d at . 

The court then examined whether the error required the court to

presume prejudice and automatically reverse or whether the error

was subject to a harmless-error analysis. Glasper, slip op. at

10, Ill. 2d at , N.E.2d at .

The supreme court noted that reversal was automatic

only where the error was "structural," meaning "a systemic error

which serves to 'erode the integrity of the judicial process and

undermine the fairness of the defendant's trial.'" Glasper, slip

op. at 16, Ill. 2d at , N.E.2d at , quoting Herron,

215 Ill. 2d at 186, 830 N.E.2d at 479. The court found the error

was not structural and automatic reversal was not required

because (1) the case did not involve a fundamental or constitutional right but merely a right made available by rule of the

supreme court and (2) under the rule in effect at that time, the

right was afforded only to those defendants who chose to exercise

it. Glasper, slip op. at 15-16, Ill. 2d at , N.E.2d

at . The court held: 

"Defendants do not have a right to Rule
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431(b)(4) questioning under either the United

States or the Illinois Constitution. A defendant's 'right' to such questioning in

Illinois courts is the product of this court-

's inherent power to make rules regulating

the conduct of the circuit courts. [Citation.] While the rule is designed to help

ensure that defendants are tried before a

fair jury, we cannot say that Rule 431(b)(4)

questioning is indispensable to a fair trial. 

This point is inherent in the rule itself,

which originally required the questioning

only if the defendant requested it. It would

be inconsistent to conclude that the failure

to question the venire in compliance with

Rule 431(b)(4) ensures that biased jurors

will be impaneled when a defendant can choose

to forgo such questioning, apparently without

such concerns." Glasper, slip op. at 15,

 Ill. 2d at , N.E.2d at .

The court further stated:

"As previously stated, when crafting the

version of Rule 431(b) applicable here, this

court had the opportunity to mandate Zehr
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questioning in every case, but chose not to. 

Instead, this court made the right to Zehr

questioning permissive. The court intentionally structured Rule 431(b) so that the trial

court's default position was to refrain from

Zehr questioning. We conclude that a violation of Rule 431(b), as applied in this case,

does not require automatic reversal and is

amenable to harmless[-]error review." Glasper, slip op. at 18, Ill. 2d at , 

N.E.2d at .

The supreme court emphasized several times that the

holding was limited to the version of Rule 431(b)(4) in effect at

the time of the trial and that it "would not necessarily apply to

subsequent versions of the rule." Glasper, slip op. at 18, 

Ill. 2d at , N.E.2d at . The court also expressly

noted that it did not hold that a violation of Rule 431(b)(4)

could never result in reversible error, and that if the facts

demonstrated that the defendant was tried before a biased jury,

the conviction would be reversed. Glasper, slip op. at 18, 

Ill. 2d at , N.E.2d at . The court further stated:

"However, there are no such facts in the

instant case. We reject the idea that the

trial court's failure to conduct Rule
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431(b)(4) questioning makes it inevitable

that the jury was biased, particularly when

the record before us demonstrates that the

jurors in this case were both admonished and

instructed against forming an adverse inference against defendant based on his decision

not to testify. To do so would require us to

presume that citizens sworn as jurors ignore

the law and the jury instructions given to

them. This notion is contrary to our precedent which instructs us to make the opposite

presumption." Glasper, slip op. at 18-19, 

Ill. 2d at , N.E.2d at .

The Glasper court then applied a harmless-error analysis and concluded that the evidence against the defendant was

overwhelming. Glasper, slip op. at 20, Ill. 2d at , 

N.E.2d at . Therefore, the error was harmless beyond a

reasonable doubt. Glasper, slip op. at 20, Ill. 2d at , 

 N.E.2d at .

2. Application of Glasper to This Case

The State argues that the holding in Glasper is equally

applicable to the new version of Rule 431(b). Specifically, the

State argues the supreme court found that the error in failing to

follow Rule 431(b) did not involve a fundamental or constitu-
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tional right and that the Rule 431(b) questioning was not indispensable to a fair trial. Therefore, according to the State, the

failure to comply could not have affected the fundamental fairness of the proceeding. We disagree.

The Glasper case involved the former version of Rule

431(b), and the supreme court expressly limited its holding to

the former version. Glasper, slip op. at 18, Ill. 2d at , 

 N.E.2d at . The former version of the rule did not

mandate Rule 431(b) questioning in every case but only when the

defendant requested it. Glasper, slip op. at 15, Ill. 2d at 

 , N.E.2d at ("It would be inconsistent to conclude

that the failure to question the venire in compliance with Rule

431(b)(4) ensures that biased jurors will be impaneled when a

defendant can choose to forgo such questioning, apparently

without such concerns"). 

In contrast, Rule 431(b) in its present form mandates

the Rule 431(b) questioning in every case, only allowing a

defendant to object to any inquiry about the fourth Zehr

principle--that a defendant's failure to testify cannot be held

against him. This distinction warrants a different result here. 

See, e.g., People v. Graham, 393 Ill. App. 3d 268, 275, 913

N.E.2d 99, 105-06 (2009) (holding that the trial court's failure

to ascertain whether all the potential jurors understood and

accepted the Zehr principles constituted plain error because the
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error denied the defendant a substantial right and a fair trial;

also concluding that Glasper did not change the result because

the holding in Glasper was limited to the former version of Rule

431(b) and the amendments to Rule 431(b) extended the rule's

protection to all defendants, not only defendants who asked for

it); People v. Madrid, 1-08-0324, slip op. at 11-12 (October 8,

2009), Ill. App. 3d , , N.E.2d , (holding

that the trial court's failure to ask the potential jurors

whether they understood and accepted all the Zehr principles

denied the defendant a substantial right and a fair trial);

People v. Arredondo, No. 1-07-2825, slip op. at 14 (October 8,

2009), Ill. App. 3d , , N.E.2d , (holding

that the trial court's (1) failure to question any of the prospective jurors regarding their understanding and acceptance of

the principle that the defendant is presumed innocent of the

charges against him and (2) general question regarding the

potential jurors' willingness to follow the law instead of an

inquiry about their understanding and acceptance of the State's

burden of proof constituted plain error and denied the defendant

a substantial right and a fair trial).

In addition, although the Glasper court did not address

plain error, the second prong of the plain-error analysis and the

analysis for structural error are similar. See People v. Blue,

189 Ill. 2d 99, 138, 724 N.E.2d 920, 940 (2000) (wherein the
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supreme court does not use the term "structural error" but states

that "[t]o determine whether [the] defendant's right to a fair

trial has been compromised, we employ the same test that this

court uses whenever it applies the second prong of the 

plain[-]error test"). The second prong of the plain-error

analysis recognizes that the error is "so substantial that it

affected the fundamental fairness of the proceeding, and remedying the error is necessary to preserve the integrity of the

judicial process." Hall, 194 Ill. 2d at 335, 743 N.E.2d at 539. 

Similarly, a structural error is "a systemic error which serves

to 'erode the integrity of the judicial process and undermine the

fairness of the defendant's trial.'" Glasper, slip op. at 16, 

 Ill. 2d at , N.E.2d at , quoting Herron, 215 Ill.

2d at 186, 830 N.E.2d at 479.

 However, the supreme court in Glasper specifically

stated that the court was not holding that a violation of Rule

431(b) would never constitute reversible error. Glasper, slip

op. at 18, Ill. 2d at , N.E.2d at . Instead, the

supreme court noted a violation would constitute reversible error

if the trial was conducted before a biased tribunal because "a

trial before a biased tribunal would constitute structural

error." Glasper, slip op. at 18, Ill. 2d at , N.E.2d

at . One of the reasons for finding that the trial in Glasper

had not been conducted before a biased tribunal was that the
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record showed the jury had been admonished and instructed against

forming an adverse inference against defendant based on his

decision not to testify. Glasper, slip op. at 18-19, Ill. 2d

at , N.E.2d at . Those facts are not present in our

case. In this case, the jurors were never advised or instructed

that defendant's failure to testify could not be held against

him. Therefore, Glasper is distinguishable on this basis as

well.

This result is consistent with the recent decision by

this court in Owens, slip op. at 9, Ill. App. 3d at , 

N.E.2d at . In Owens, this court, without discussing Glasper,

held that despite the fact that the trial court reviewed the Zehr

principles with the entire venire, the court's error in failing

to directly question the individual jurors regarding their

agreement or disagreement with those principles constituted plain

error. The Owens court found that the fact that the court

admonished the venire before questioning, gave oral instructions

before deliberations began, and delivered jury instructions that

recited the Zehr principles in whole or in part, did not excuse

the court's failure to comply with Rule 431(b). Owens, slip op.

at 12, Ill. App. 3d at , N.E.2d at . This court

held, "We conclude the record here reveals a complete breakdown

of the judicial process that undermines this court's confidence

in the jury's verdict." Owens, slip op. at 11, Ill. App. 3d
- 21 -

at , N.E.2d at .

Similarly here, plain error occurred when the trial

court failed to question each venireperson as to whether he or

she understood and accepted the principle that defendant's

failure to testify could not be held against him. The error was

so substantial that it affected the fundamental fairness of the

proceeding.

Finally, we find that the evidence was sufficient to

sustain defendant's conviction. Although we reach no conclusion

binding on retrial as to defendant's guilt, we conclude that

double jeopardy does not bar a retrial of defendant. See People

v. Walker, 232 Ill. 2d 113, 131, 902 N.E.2d 691, 700 (2009).

III. CONCLUSION

For the reasons stated, we reverse defendant's conviction and remand for a new trial. 

Reversed and remanded.

McCULLOUGH, P.J., and APPLETON, J., concur.